New personal injury arbitration scheme launched
The Personal Injury claims Arbitration Service (PIcARBS) was launched at an event at Lincoln's Inn Fields on 22 June…
Published 1 October 2015
Ben Harman v East Kent Hospitals NHS Foundation Trust  EWHC 1662 (QB) affirms the general principle that a Claimant is entitled to recover the costs of future care and accommodation from the tortfeasor rather than rely on the statutory duty of a public authority to provide the same.
Ben Harman suffered from severe autism and significant cognitive impairment as a result of negligent post-birth management by the Defendant's hospital, and he brought a claim when aged 14.
In 2013 he was placed in a residential educational centre (Prior's Court) for those with severe autism. His place was funded by the Local Education Authority (LEA) from 2014 after his parents took the matter to a tribunal. The parents wished him to stay at the centre until he was 25 before returning home, and experts for both sides agreed the LEA would continue to fund his place until that time. Nevertheless the parents' preference was for the place to be funded by the Defendant.
The Defendant contended that it should not be required to fund the placement as the Claimant would suffer no loss. It relied on Sowden v Lodge  EWCA Civ 1370 and Crofton v NHSLA  EWCA Civ 71 where the court took into account payments by the local authority to avoid double recovery.
Mr Justice Turner, relying on Peters v East Midlands Strategic Health Authority  QB 48, upheld the Claimant's right to choose damages rather than be dependent on the State. He described the parents' expressed wish to opt for private funding as entirely genuine, commenting that they had fought a long and difficult battle to obtain public funding for Prior's Court.
The Defendant had argued, in the alternative, that if statutory funding might falter after Ben reached the age of 19, they would offer a capped educational indemnity. This too was dismissed by Mr Justice Turner. He did acknowledge it would be entirely wrong for Ben to receive double recovery and pointed to an indication from Ben's advisers that the Deputy would give an appropriately worded indemnity.
Insurers should be mindful of a claimant's desire for care to be funded through compensation even when statutory provision is available from the State.
Liability was not in dispute in this case. However, where there is a risk of a finding of contributory negligence against a claimant leading to a potentially significant shortfall in the damages, the availability of statutory funding is likely to be a more important consideration for claimants.